The inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are gradually yielding to treaty provisions which distinctly determine the position of such persons.
Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state.
(a) The native state naturally has jurisdiction of a qualified sort over its subjects even when they are in a foreign state.
(1) The right to make emigration laws may lead to restrictions binding in a foreign state. A state may banish its subjects. No other state is obliged to receive them, however.
(2) A state may recall its citizens for special reasons, as in the case of Greece in 1897, when Greek citizens were recalled for military service.
(3) There is much difference of opinion upon the question of penal jurisdiction of the native state over its subjects who have committed crimes in a foreign state. In general American and English authorities agree that penal law is territorial. Some of the continental authorities take the view that a citizen on his return may be punished for crimes committed in a foreign state. The English law takes this position in certain crimes, as treason, bigamy, and premeditated murder. Usually a crime committed upon a vessel in a foreign harbor is held as within the jurisdiction of the state of the vessel's registry.
(4) A state may interfere to protect its subjects in a foreign state, thus extending its authority in their behalf. This has been frequently done to protect Western sojourners in Eastern states, e.g. the demands of Germany, in 1898, for concessions from China on account of injuries to missionaries. These demands, accompanied by a naval demonstration, resulted in the cession of Kaio-Chau.
(b) The jurisdiction of a state over aliens within its territory is very extensive.
(1) The absolute right of exclusion of all foreigners would hardly be maintained by any civilized state, though it could be deduced from the doctrine of sovereignty. Whether justly or not, Japan and China have been compelled by force to cede certain rights to states demanding admission for their citizens.
(2) The right of expulsion is, however, generally maintained. This right should, however, be exercised most carefully, as the fact of admission carries with it some obligation on the part of the admitting state.
(3) The right to conditional admission is generally allowed, as seen in laws in regard to immigration.
(4) The foreign state may impose such restrictions upon settlement as it sees fit.
(5) A foreign state may levy such taxes upon the person and goods of aliens as are in accord with state law.
(6) Aliens are subject to the local sanitary and police jurisdiction.
(7) The foreign state has penal jurisdiction over aliens for crimes committed within territorial limits, and many states maintain, also, for such crimes as plotting against the state, counterfeiting state money, or crimes directly imperiling the state's well-being even when committed outside of state limits.
(8) The state may require aliens to render service such as is necessary to maintain public order, even military service, to ward off immediate and sudden danger, e.g. as an attack by savages, a mob, etc., but
(9) A state cannot compel aliens to enter its military service for the securing of political ends, or for the general ends of war.
(10) In nearly all states freedom of commerce is now conceded, the state giving to native and foreigner similar privileges. China still restricts trade to certain free ports.
(11) The holding and bequeathing of property of whatever sort is subject to local law.
(12) Freedom of speech and of worship are also subject to local law.
All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc.
(c) Ordinarily the identity of an alien is established by a passport. This may also secure for him a measure of care in a foreign state. Below is the form of passport.
| Good only for two years from date. | |
|---|---|
| UNITED STATES OF AMERICA | |
| Department of State | |
| To all to whom these presents shall come, Greeting: | |
| I, the undersigned, Secretary of State of the United States of | |
| America, hereby request all whom | |
| DESCRIPTION | it may concern to permit |
| Age.... Years..................... | |
| Stature... Feet... Inches..., Eng. | .............. ..............., |
| Forehead.......................... | a Citizen of the United States, |
| Eyes.............................. | ........................ safely |
| Nose.............................. | and freely to pass, and in case of |
| Mouth............................. | need to give ... all lawful Aid |
| Chin.............................. | and Protection. |
| Hair.............................. | |
| Complexion........................ | Given under my hand and the |
| Face.............................. | Seal of the Department of State, |
| at the City of Washington, the | |
| (SEAL) | ... day of ....... in the year |
| 19..., and of the Independence of | |
| (Signature of the Bearer) | the United States the one hundred |
| .................................. | and................. |
| No..... | ................ |
As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.
This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.[177] Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."[178] Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.
Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and administrative regulations. In the case of Vavasseur v. Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.[179] The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's hôtel or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the hôtel to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force.
The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.[180] A sovereign may travel incognito, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper.
(a) Diplomatic agents, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or hôtel, (8) and from the exercise of similar authority over his household, official and unofficial.
(b) The exemptions granted to consuls vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.[181]
(c) Any foreign army within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require."[182] Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.
The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent.
(d) Navy. As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not."[183]
In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel;[184] (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate Constitution, in 1879, that she was not liable to salvage charges;[185] the vessel is therefore liable to quarantine, anchorage, etc., rules which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.
A commander cannot pursue deserters on shore or exercise external authority.
Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."[186]
In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.
(a) In certain Oriental states, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions,"[187] and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.[188] The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.
The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.
(1) Penal Matters. If a native commits a crime against a foreigner, he is generally tried in the local court.
If a foreigner commits a crime against a native, he is generally tried in the consular court of his state.
If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.
If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.
If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.
(2) Civil Matters. In cases involving a foreigner and a native, the trial is generally by agents of the two countries.
In cases involving subjects of the same state, their consular court has jurisdiction.
In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.
In cases involving large interests, there is an appeal from the consular to the higher courts of the state.
In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.[189]
(b) In Egypt mixed courts were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.[190]
The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion.
Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.
Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.[191] The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such cases are not common, however,[193] and it is safe to derive the principles from the general practice as seen in treaties.
(a) Persons liable to extradition vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.[194] The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition.
A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.
In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties.
Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.
(b) Even when an accused person is extradited there are limitations as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.[195]
(c) The conditions necessary for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form.[196]
(d) The procedure in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers.[197] The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand.
The person demanded may be placed under provisional arrest pending the full proceedings of extradition.[198]
Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.
In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.
When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.
When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.
When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.[199]
If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.
Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of private international law.
Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states.
(a) International servitudes are:—
(1) positive, implying that a state is under obligation to permit within its territory another state to exercise certain powers, as by the Treaty of Berlin, 1878, Art. XXIX. "The administration of the maritime and sanitary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coastguard vessels;"[200]
(2) negative, implying that a state is to refrain from certain acts, otherwise customary, as "Montenegro shall neither have ships of war nor flag of war."[201]
Among the positive servitudes are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the negative servitudes are: those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place.
(b) There are also servitudes which may be called general, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.[202]
PROPERTY
The term "property" has been used in varying senses by writers upon international law. By virtue of the fact that a state has jurisdiction over all its public property there has sometimes been confusion between the two terms, but jurisdiction may, and does, extend to persons and things of which proprietorship cannot be affirmed by the state.
In the sense commonly used in international law the property of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exercise the right of eminent domain.
The idea of property in this international sense is distinct from that of private ownership, which is merely relative and depends upon the regulations of the state; indeed, private property may be seized for the debts of the state.
A state may hold absolute possession of such objects as are capable of appropriation, as lands, buildings, and other material resources for public purposes. In some cases the state owns the railroads, telegraphs, mines, etc. In time of war such property receives treatment somewhat different from that of private property, and in time of peace it may receive special recognition, e.g. houses of ambassadors.
Hall outlines this subject as follows: "A state may own property as a private individual within the jurisdiction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capacity in places not belonging to its own territory, whether within or outside the jurisdiction of other states."[203] Property of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come with the scope of international law both in time of peace and of war.
DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE
Diplomacy may be broadly defined as the art and science of international negotiation. The conditions which make possible established relations among states are of comparatively recent origin. In the days when stranger and enemy were not distinguished, and when "strange air made a man unfree," there could be no extended relations among states. In very early times, however, states had some relations with each other, and general principles were observed in carrying on such business as might be necessary. These growing relations have given rise to what is known as the right of legation. Sometimes a right of intercourse between states has been claimed on the ground that the citizens of one state cannot be excluded from the natural advantages of another state, on the ground that all men have an equal right to innocent use of the earth's resources, or on more abstract grounds of moral duty variously interpreted. As the actual practice of states never has recognized such a right to contend for it would hardly be necessary. States put restrictions upon commerce, even to the exclusions of goods and persons. In some cases where the terms of the state enactment may not be prohibitive, the conditions of admission amount to practical prohibition.[204]
The influence of commerce in its many forms, the idea of unity of mankind in its various manifestations, the growth of neighborhood on the part of European states, and the necessity of respect for each other on the part of these states, made interstate relations imperative and convenient. While the right of intercourse might be questioned, the necessity and convenience of interstate relations admitted of no question.
(a) Historical. In very early times special privileges were extended to heralds, ambassadors, or other bearers of the state will. Laws[205] and history record as a fact this practice which had long been observed. The ambassador was often one who in his own state held some priestly office. In the days of the Roman dominance, the office of ambassador was commonly exercised by one holding a religious office, and while the unity represented by the church remained prominent, its officials were often ambassadors. Both from necessity and from the sacred character of the person, the ambassador was usually regarded as inviolable. The person of the ambassador was respected long before there was any recognition of the rights and dignity of states as states. In order that there might be any such intercourse, it was necessary that the agents should not be placed in undue personal peril.[206]
With the preëminence of the Italian city states in the Middle Ages there came the development of diplomacy as an art. The most distinguished men of the times were called to this state service. Machiavelli's name is inseparably linked to one school of diplomacy. Dante, Petrarch, Boccaccio, and others whose names have become famous, were sent on missions.[207]
During the thirteenth century, Venice outlined the policy which her ambassadors should follow, and there the system of foreign representation became well established. This system included the granting of a commission, instructions, letter of credence, attachés, etc. Italy may, indeed, be called the home of the diplomatic system.
For many years, in fact till comparatively recent times, ambassadors were looked upon with suspicion, as spies whom monarchs were more willing to give than to receive. Gradually, however, the practice of sending and receiving ambassadors was seen to have much value. During the fifteenth century, which marks the beginning of the modern period in the history of diplomacy, the practice of sending permanent ambassadors seems to have arisen. There may have been isolated cases of sending of permanent ambassadors before this time, but from the fifteenth century the practice became more and more common, though the different countries did not observe any uniform regulations as to personnel, procedure, or in other respects. From this time diplomacy became more of a career, and one going on a mission to a foreign country received careful preparation that he might outwit the representatives of the state to which he was sent. Sir Henry Wotton's oft-quoted definition of an ambassador, "An ambassador is an honest man, sent to lie abroad for the good of his country,"[208] describes the attitude taken in many countries toward the office, when early in the seventeenth century he wrote the definition in Christopher Flecamore's album. Gradually the rules of international negotiation became established, and treatises upon the subject appeared.
The Peace of Westphalia in 1648, which marks the beginning of modern international relations, showed that modern diplomacy had already obtained a recognition, and served to give it a more definite form. This date serves as a boundary to the first division of the modern period in the history of diplomacy. The years from the early part of the fifteenth century to the Peace of Westphalia are the years of beginnings. From this time the system of permanent ministers, which so greatly changed the character of international negotiations, became almost a necessity through the development of the equilibrium of the states of Europe.[209]
During the years 1648 to 1815 the relations of states became more complex, and the business of international negotiation more delicate. Diplomatic practice, always tending to look to precedent, suffered severe strains under the ambitious monarchs occupying the thrones of Europe after the Peace of Westphalia. Principles and precedent were often disregarded to obtain political ends. So great was the friction that at length some of the more commonly disputed questions were settled at the Congress of Vienna, 1815.
(b) The question of relative rank of state agents gave rise, in the days before the Congress of Vienna, to many difficulties. The protocol of that Congress of March 9, 1815, together with the eighth article adopted at the Congress of Aix-la-Chapelle, Nov. 21, 1818, give the basis of present practice as follows:—
"In order to prevent in future the inconveniences which have frequently occurred, and which may still occur, from the claims of Precedence among the different Diplomatic characters, the Plenipotentiaries of the Powers who signed the Treaty of Paris have agreed on the following Articles, and think it their duty to invite those of other Crowned Heads to adopt the same regulations:—
Division of Diplomatic Characters
Art. I. Diplomatic characters are divided into Three classes: That of Ambassadors, Legates, or
Nuncios.
That of Envoys, Ministers, or other persons accredited to Sovereigns.
That of Chargés d'Affaires accredited to Ministers for foreign affairs.
Representative Character
Art. II. Ambassadors, Legates, or Nuncios only shall have the Representative character.
Special Missions
Art. III. Diplomatic characters charged with any special Mission shall not, on that account, assume any superiority of Rank.
Diplomatic Precedence
Art. IV. Diplomatic characters shall rank in their respective classes according to the date of the official notification of their arrival.
Representatives of the Pope
The present Regulation shall not occasion any change respecting the Representative of the Pope.
Form for Reception of Diplomatic Agents
Art. V. There shall be a regular form adopted by each State for the reception of Diplomatic Characters of every Class.
Diplomatic Agents of Courts Allied by Family or Other Ties
Art. VI. Ties of consanguinity or family alliance between Courts confer no Rank on their Diplomatic Agents. The same rule also applies to political alliances.
Alteration of Signatures in Acts or Treaties
Art. VII. In Acts or Treaties between several Powers that admit alternity, the order which is to be observed in the signatures of Ministers shall be decided by ballot.[210]
Art. VIII. It is agreed between the Five Courts that Ministers Resident accredited to them shall form, with respect to their Precedence, an intermediate class between Ministers of the Second Class and Chargés d'Affaires."[211]
To the articles, except the last, Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and Sweden were not parties to the eighth article. Theoretically these rules are binding only upon those states parties to the treaties, but practically they are accepted by all civilized states.
The four grades are as follows:—
1. Ambassadors, legates, and nuncios.
2. Envoys, ministers, or other persons accredited to sovereigns.
3. Ministers resident.
4. Chargés d'affaires.
The first three grades are accredited to the sovereign. The fourth grade, chargés d'affaires, is accredited to the minister of foreign affairs.
The rank of the agent does not necessarily have any relation to the importance of the business which may be intrusted to him. The titles given to the different diplomatic agents, at the present time, are in a general way descriptive, as follows:—
(1) Diplomatic agents of the first class are held to represent the person of the sovereign. Ambassador ordinary usually designates one holding a permanent mission. Ambassador extraordinary designates one on a special mission, or having power to act in exceptional circumstances. This, however, is most often a title of somewhat superior honor giving no other advantage. Papal legates rank, and for practical purposes, are, ambassadors extraordinary, though representing particularly ecclesiastical affairs and the Pope as head of the Church. Legates are chosen from the cardinals and sent to countries recognizing the papal supremacy. Nuncios of the Pope rank as ambassadors ordinary on a permanent mission, and are usually intrusted with power to transact general affairs.[212]
(2) Envoys extraordinary, envoys ordinary, and ministers plenipotentiary have in general the same functions and rank. With these rank the papal internuncio. The general idea is that the agents of the second class do not stand for the person of the sovereign, but for the state.
(3) Ministers resident are regarded as upon a less important mission than the agents of the first or second class. They are frequently sent by the greater powers to the lesser powers.
(4) Chargés d'affaires ceremonially rank below the ministers resident. They are accredited to the minister of foreign affairs, while members of the first three classes are accredited to the sovereign. A chargé d'affaires may perform the functions of the higher grades of agents and has the same general privileges. When a consul is charged with a diplomatic mission he ranks with the chargés d'affaires. Commissioners on various missions are sometimes accorded the same rank; but, as they do not bear the title, commissioners cannot claim the rank of the chargé d'affaires, though in their functions there may be no difference.
There is no rule as to the grade of diplomatic agent which one state shall send to another, though it was formerly held that only states entitled to royal honors could send ambassadors. It is now customary for states to agree among themselves as to the relative rank of their diplomatic agent. Thus the United States by a recent act provided that "whenever the President shall be advised that any foreign government is represented or is about to be represented in the United States by an ambassador, envoy extraordinary, minister plenipotentiary, minister resident, or special, envoy or chargé d'affaires, he is authorized in his discretion to direct that the representative of United States to such government shall bear the same designation. This provision shall in no wise affect the duties, powers, or salary of such representative."[213]
The rank of a diplomatic agent is a mark of dignity and honor particularly of consequence in matters of etiquette and ceremonial. Reciprocity between states is the general rule in the grade of agents. The old theory that agents of the first rank had access to the ear of the sovereign is no longer held, and all grades alike represent both the sovereign and the state from which they come.
The personnel of a mission may be distinguished as the official and the non-official.
(a) The official suite consists of the functionaries, and varies in number according to the dignity and importance of the mission. Formerly the number was scrutinized with great care, owing to the fear that a numerous suite might endanger the safety of the receiving state. The official suite may include, (1) the counsel to the mission, (2) the secretaries, (3) the attachés, military, naval, and others, (4) the interpreters and dragomans, (5) the clerks and accountants, (6) the couriers, (7) the chaplain, (8) the doctor, and in some instances other officers necessary for the performance of the official functions.
(b) The non-official suite includes the family of the diplomatic agent and those in his household employ. This may include, beside his immediate family, (1) the private chaplain, (2) the private doctor, (3) the private secretaries, (4) the domestic servants of various grades.
It is the general rule that sovereign states only may send ambassadors or other diplomatic agents. Sometimes diplomatic relations are maintained between states when both are not fully sovereign, as in the relations between Bavaria, a member of the German Empire, and France. In general, where the sovereignty of a state is not complete, its right of legation is fixed by the treaty which impairs its sovereignty. A state which has not full sovereign powers may have a partial right of legation, either active or passive, or a right to send diplomatic agents with limited functions.
The sending of a diplomatic agent is essentially an act of the sovereign person, whether he be a monarch, president, council, or have other title. The domestic law determines who this person shall be. International law makes no distinction.
In each state a department, usually called the department of foreign affairs, has the business of international intercourse in charge. The organization of this department and the general methods are matters of domestic law. All foreign states need to know is to what extent this department is competent to carry on negotiations.
Before actually sending a diplomatic agent, a state usually obtains assurance from the receiving state that the proposed agent will be an acceptable person. If the proposed agent is a persona non grata, it is held that the foreign state is not obliged to give its reasons for refusing to receive him. To refuse a given person does not imply any lack of courtesy to the sending state on the part of the refusing state. A state may refuse to receive one of its own citizens as the minister of a foreign state. Sometimes states have refused to receive those who have in the sending state taken positions manifesting hostile disposition toward the receiving state.
In 1885 the Italian government refused to receive Mr. Keily as United States representative on the ground that he had denounced the overthrow of the temporal power of the Pope. It was considered probable that one who had taken so decided an attitude toward an action of the government to which he was sent would hardly be acceptable. Mr. Keily had just before been refused by Austria-Hungary on the ground that his wife was a Jewess and his marriage only a civil one. President Cleveland showed his attitude toward this action in his first annual message, 1885. "The Austro-Hungarian government finally decided not to receive Mr. Keily as the envoy of the United States, and that gentleman has since resigned his commission, leaving the post vacant. I have made no new nomination, and the interests of this government at Vienna are now in the care of the secretary of legation, acting as chargé d'affaires ad interim."[214]
Before starting upon his mission, a diplomatic representative receives, if of one of the first three classes, from the head of the state, if of the fourth class (chargé d'affaires) from the minister of foreign affairs, a letter of credence. In the United States the President signs the letters of credence of diplomatic agents above the rank of chargé d'affaires. In these instances the letter is addressed to the head of the foreign state. In the case of chargé d'affaires the letter is addressed to the minister of foreign affairs and signed by the Secretary of State. A letter of credence gives the name, the character and general object of the mission, and requests for the agent full faith and credence as the state's representative. In case of representatives to Turkey, besides the letter of credence to the Sultan, letters are also taken to the grand vizier and to the minister of foreign affairs. Representatives of the Pope carry in place of letters of credence papal bulls. Sometimes a diplomatic agent receives also letters of recommendation to persons of importance in the foreign country. These letters have a semi-official character in many cases. While a letter of credence may give power to open treaty negotiations, it is usual to give a special letter conferring full powers or general full powers to close and sign a treaty, or to act in behalf of the state in some manner not covered by his instructions. These letters are commonly letters patent.
The diplomatic agent also customarily receives instructions which may be either for his own guidance or to be communicated to the foreign state. If to be communicated to the foreign state, the instructions make more fully known his special functions. In all cases the agent is bound by his instructions, and in case of doubt as to method of action it is easy, in these days of rapid communication, to entertain a matter ad referendum.
The diplomatic agent also receives for himself, family, and suite a special passport. The special passport "differs from the ordinary passport in that it usually describes the official rank or occupation of the holder, and often also the purpose of his traveling abroad, while generally omitting the description of his person."[215] This may serve not only the purpose of the ordinary passport, but may also give an official introduction to the bearer.
The papers furnished to diplomatic representatives of the United States include:—
1. A sealed letter of credence to the head of the state or minister of foreign affairs according to rank of the representative.
2. "An open office copy of the letter of credence."
3. The special passport above mentioned.
4. "A copy of the Register of the Department of State."
5. A letter of credit upon the bankers of the United States.
6. A copy of Instructions to the Diplomatic Officers of the United States.
7. A copy of the Consular Regulations of the United States.
(FORM OF)
LETTER OF CREDENCE
A.............. B..............,
President of the United States of America.
To ...............................
................................
................................
Great and Good Friend:
I have made choice of ...............................
one of our distinguished citizens, to reside near the Government of
Your ............ in the quality of ...............................
He is well informed of the relative interests of the two countries and
of our sincere desire to cultivate to the fullest extent the friendship
which has so long subsisted between the two Governments. My
knowledge of his high character and ability gives
me entire confidence
that he will constantly endeavor to advance the interest and prosperity
of both Governments, and so render himself acceptable to Your ......
............
I therefore request Your ............ to receive him favorably and
to give full credence to what he shall say on the part of the United
States, and to the assurances which I have charged him to convey to
you of the best wishes of this Government for the prosperity of ......
............
May God have Your ............ in His wise keeping.
Written at Washington this ............ day of ............ in the
year ................
Your good friend,
A ............ B ............
By the President,
............................
Secretary of State.
(a) General. In certain countries diplomatic ceremonial has been very elaborate and complex. The tendency during the nineteenth century has been toward simplification. Each state has the power to determine its own ceremonial for the most part. Of course no state can disregard established rules as to rank, precedence, and similarly generally recognized practices. At the time when these practices originated it was imperative that there should be some fixed mode of procedure which a state could follow without giving offense in its treatment of a foreign representative. Much of the ceremonial became fixed during the latter part of the seventeenth and during the eighteenth century. In the days of absolutism the monarch naturally demanded such recognition of his representative in a foreign country as befitted his own estimate of the dignity of the monarchical office. It may not be unfortunate that the monarch placed a high estimate upon the sovereign office and devised a ceremonial commensurate with this estimate, for what was once done out of respect for and in response to the demand of a personal sovereign, is now done out of respect for the dignity of the state itself. Thus in the days of more democratic sovereignties international representatives are clothed with a dignity which both elevates the attitude of participants in international negotiations and gives greater weight to their conclusions. The ceremonial also fixes a definite course of procedure which any state may follow without giving offense to another, whether it be weak or powerful.